UK: Three Recent DCO Decisions

Last Updated: 29 August 2017
Article by Angus Walker

Today's entry reports on the three most recent decisions on Development Consent Order applications.

There's a bit of catching up to do after a well-earned, or at least much-needed break, so here's a mammoth entry.

Three decisions have been issued in the last month, all positive: for the Wrexham Energy Centre on 18 July, the Richborough Connection Project on 3 August and the East Anglia Three Connection Project on 7 August.

Wrexham Energy Centre

Interestingly, the three projects were granted in the reverse order of their application dates. The first to be granted, and last to be applied for, was a Welsh power station.

Here are the facts and figures:

  • project: a project to build a gas-fired power station of up to 299MW near Wrexham in Wales;
  • promoter: Wrexham Power Ltd, part of St Modwen Homes;
  • application made: 18 March 2016;
  • one inspector – Rynd Smith (his sixth, including the East Anglia Three wind farm – although they were made four months apart their examinations almost entirely coincided);
  • 22 relevant representations, low;
  • 25 written representations, average;
  • 228 questions in the first round – above average;
  • Two compulsory acquisition hearings, five issue specific hearings and one open floor hearing – high;
  • One Local Impact Report, from Wrexham;
  • examination exactly six months, recommendation one day less than three months, decision exactly three months;
  • 487 days from application to decision, 15 months, below average; and
  • 505 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), average.

Notes on the decision letter.

Because the electricity connection was being pursued separately by the distribution network operator via its permitted development rights, it was concluded that EN-5, the National Policy Statement for electric lines, was not relevant, although the letter does note a change in electricity line route to avoid a protected habitat.

A requirement was added to require an application for combined heat and power to be made if there are 'viable opportunities' for it. I wonder how that will be tested.

The ratchet for compulsory acquisition is turned up – a consultation on outstanding compulsory acquisition took place during the decision period. Howeer, although some protective provisions were added, the powers were granted.

The order was not much amended by the government. I think it's impossible to avoid changes being made 'to conform with the current practice for statutory instruments'.

One of the objectors was Kellogg's, on various grounds including dust and air quality. Could add some crunch to crunchy nut.

Richborough Connection Project

The second project is an electricity connection in Kent.

  • project: a project to build a 20km 400kV power line between Richborough and Canterbury in Kent, to connect the 'Nemo Link' interconnector from Belgium to the UK network;
  • promoter: National Grid, their fifth successful application, the most by any applicant so far;
  • application made: 11 February 2016;
  • four inspectors – Frances Fernandes, Annie Coombs, Richard Rees and Stephen Roscoe;
  • 83 relevant representations, average;
  • 30 written representations, average, including the largest one I've ever seen, from South East Water;
  • 456 questions in the first round – high;
  • two compulsory acquisition hearings, seven issue specific hearings and one open floor hearing – high;
  • one Local Impact Report, jointly from Kent, Dover, Canterbury and Thanet;
  • examination exactly six months, recommendation exactly three months, decision five days short of five months;
  • 567 days from application to decision, 17 1/2 months, above average; and
  • 895 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), high.

Notes on this decision letter.

The three-month decision period ended on the day of the general election and so the decision period was extended from three to five months, although the decision was actually made five days before the new deadline. There have been a few recent late decisions now.

There was a very well-resourced objection from South East Water, on the grounds that the route of the line would interfere with its future proposals for a reservoir.

This is of general application: to what extent do proposals have to take into account other as-yet-unapplied-for proposals in their design and cumulative assessment? In this case it was agreed that the applicant needn't have taken the reservoir into account in its assessments because it was too uncertain, although on design it was eventually agreed to move one pylon by 80 metres, which gets its own requirement as to its position.

There was a lot of argument about the route, undergrounding versus overgrounding and whether upgrading an existing line would be better, but the application was granted more or less unchanged.

A requirement was added to the DCO to the effect that powers of compulsory acquisition and imposition of restrictions on use of land had to be exercised 'reasonably'. I wonder what difference that will make.

Note paragraph 5.142 of the decision letter, where there is a different process for registering local land charges (which include compulsory acquisition under the Planning Act 2008) depending on whether the local authority registers them, or the Chief Land Registrar pursuant to the Infrastructure Act 2015. Not a lot of people know that.

The National Farmers Union said that the application engaged article 4 of the European Convention on Human Rights prohibiting slavery, but no-one else agreed.

As is often the case, MPs made their views known outside the formal timetable, but the government decided they hadn't raised any new points.

We tried to get the 'made' and 'coming into force' dates closer together than the usual 21 days. Although we didn't succeed on this occasion, the door was left open to show that there were contractual reasons for a shorter period, so someone else might be more successful.

East Anglia Three Offshore Wind Farm

The final project is one of four parts of a giant wind farm off the coast of East Anglia (the others being One (already consented), One North and Two (not yet applied for)).

  • project: a 1200MW wind farm project of up to 172 turbines off the coast of Great Yarmouth in Norfolk (although cable landfall is in Suffolk);
  • promoter: East Anglia THREE Ltd, part of Scottish Power;
  • application made: 15 December 2015;
  • four inspectors – Philip Asquith, Peter Braithwaite, Gavin Jones and Rynd Smith;
  • 39 relevant representations, low;
  • 14 written representations, low;
  • 182 questions in the first round – average;
  • one compulsory acquisition hearing, five issue specific hearings and no open floor hearings – average;
  • one Local Impact Report, jointly from Suffolk, Suffolk Coastal and Mid Suffolk;
  • examination exactly six months, recommendation exactly three months, decision one day short of five months;
  • 628 days from application to decision, 19 1/2 months, high; and
  • 768 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), above average.

Notes on the decision letter. The DCO is one of the longer ones, at 213 pages.

This application was longer than usual – half explained by the six-week delay in the decision (the original decision date being 20 days after the election, so less excuse to delay it than Richborough), and half by a two and a half month gap between acceptance and the representation period at the start of last year.

The examining authority asked Natural Resources Wales to join the application, not sure why. I don't think they did.

The effect on Natural 2000 sites and bird collision in particular was reduced by the East Anglia One wind farm being reduced from 240 to 150 turbines, and the draught (draft?) height of 70% of the turbines being increased by 2m.

The effect on harbour porpoise (which had delayed another wind farm project) was mitigated by the promise of a 'Site Integrity Plan' – other promoters please note.

The government of the Netherlands and the Prefecture du Nord of France participated in the examination, having been contacted due to transboundary effects. After Brexit this will still happen because the duties relating to transboundary effects derive from a convention (the Espoo Convention) independent of membership of the European Union and ratified by the UK separately.

The next decision due is for the Silvertown Tunnel in east London, due by 11 October. There are now only four live applications, the fewest since November 2011.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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